In my Consulta Migratoria® column this week, a reader wants to know if he will be denied entry into the country as a tourist if a family petition is being processed on his behalf.
Each case is different and the answers vary depending on each person's immigration history.
Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.
This is the column:
I live in Guatemala and I have a B-2 tourist visa to enter the U.S. My sister is a U.S. citizen and is about to file a family petition to immigrate to the U.S. in the future. My sister is an American citizen and is about to file a family petition for her to immigrate to the U.S. in the future. Can I continue to travel on my tourist visa or will I no longer be allowed to enter the U.S. until I am approved for an immigrant visa? Jorge G.
Jorge, you may be able to continue traveling to the United States on your tourist visa while you wait to apply for an immigrant visa through the family petition that your sister will file with the U.S. Citizenship and Immigration Services (USCIS).
The terms of the B-2 tourist visa stipulate that you cannot intend to stay and live in the United States when you apply for entry into the country. Each time you travel to the United States, a customs officer evaluates your application for entry to determine whether you meet the requirements to enter the country, including being admissible and demonstrating that you will not remain in the United States to live.
The consular processing of a family petition is a two-step process that can take many years, depending on your country of origin and who is petitioning you. Once your petition is approved, your immigration file is sent to the U.S. Department of State's National Visa Center (NVC). During this second stage, you will have to wait until an immigrant visa becomes available for you to apply.
In your case, as your sister will be asking you and you are from Guatemala, you fall into the fourth preference category, siblings of U.S. citizens, in which you will currently have to wait approximately 13 years to obtain an immigrant visa.
While your case is being processed by the federal government and you are waiting to apply for an immigrant visa, you should be able to travel without problems. When you arrive in the U.S. on a B-2 tourist visa, the customs officer should not consider the family petition as a sign on your part that you want to stay and live in the country.
When you are finally able to file an immigrant visa application, at that point you will be demonstrating an intent to live permanently in the United States and will probably no longer be able to use your tourist visa.
If you decide to travel to the United States on a tourist visa while waiting to apply for your immigrant visa, never lie to a customs officer about the family petition your sister filed on your behalf.
Each time you travel, you should carry with you evidence that clearly demonstrates that you do not intend to violate the terms of your visa by staying to live or work illegally in the United States.
For example, it is recommended that you carry documentation confirming that you live and work abroad and that you have not violated U.S. immigration laws in the past.
Also, bring proof that your case is still pending with USCIS or the NVC and that you have not filed an immigrant visa application.
Jorge, you and your sister should consult with an immigration attorney before beginning any immigration proceedings.